Frequently Asked Questions About Mediation

What is mediation?

             Mediation is a process whereby the parties meet with a third party (neutral) mediator in a confidential session in an attempt to voluntarily settle their dispute, normally by a compromise agreement. 

Do I have to mediate? 

            Normally yes.  Most judges require mediation before trial. 

How is a mediation different from arbitration or trial?

·        Mediation is informal, very few “rules”

·        Mediation is confidential

·        Rarely any witnesses

·        Compromise settlement possible where trial is usually all or nothing

·        Less expensive than trial or arbitration

·        Parties are working towards a jointly agreed upon resolution rather than a verdict

·        Lessens hostility, while fostering conciliation

·        Does not waive any legal rights

·        Settlement can include items not available in arbitration or trial

·        Encourages thinking “outside the box”

Procedurally, how does mediation work?

             Joint Session: Usually starts with a joint session wherein each side has an opportunity to present their case.

                    Private Sessions:  The joint session is followed by private sessions with the mediator where the merits of the case are discussed and the parties work toward a settlement. The mediator goes back and forth between the parties until a settlement is reached or an impasse is declared.

             Settlement Agreement:  When a settlement is reached, the parties will draft and sign a handwritten mediation agreement which sets forth the settlement agreement and constitutes a formal contract, enforceable in court.  All parties must sign this agreement.  This agreement is normally followed by “form” releases and a notice of dismissal to the court.

             Impasse:  If the mediation impasses, the mediator will so notify the court.  The mediation is confidential so the parties continue with their lawsuit as if mediation did not occur.  The jury will never know there was a mediation.

 When should I mediate?

             When you have enough facts to evaluate the case for your client.

             When there is sufficient information (facts, law, other factors) to encourage the other side to compromise.

 What should I tell the other side before mediation?

             How much information you disclose prior to mediation depends on your case and the status of the parties on the other side.  Normally you want the other side to know about the strengths of your case so that they can evaluate their risks before the mediation.  This is particularly true if you are dealing with a corporate risk manager or insurance company as they will need this information prior to mediation in order to present it to their managers or loss committee.  It is rare that a risk manager or insurance representative has complete, unfettered authority and therefore if you blind side them with a significant piece of information at the mediation that significantly increases the value of your case, it will often lead to a continuance or impasse if they are unable to obtain additional authority.  It is more difficult for the claim representative to go back for more money since they have to first admit that their initial evaluation was wrong.  Some adjusters would rather lose at trial and blame the result on the jury (or the lawyer), rather than risk their reputation or job by admitting to their boss that they were wrong originally.

 What should I tell my client before mediation?

             Procedure:  Although the mediator will explain the procedure (joint session, private sessions, etc.) during his or her opening, it is a good idea to explain the procedure to your clients if they have not already been through a mediation so that they are as comfortable as possible.  Remember, if this is their first time, they will be very nervous.

             Merits:  Whether your client is experienced in mediation or not, you should always discuss the merits of your case (the good and the bad) with them before you mediate.  Remember, the mediator will be discussing your case’s weaknesses with you in private session to encourage you to reach a compromise settlement.  You do no want your client to hear about the weaknesses of his or her case for the first time from the mediator!

             Although you need to have the settlement goals and discuss them with your client, be careful not to cast them in concrete or you will find yourself in the same position as the hapless adjuster described above if you need to compromise just a little bit more to make a settlement work.

 How long does mediation last?

             According to the rules, the mediator sets the allotted time for the mediation.  In practicality, the parties set the time when they schedule the mediation, usually in half day or full day increments.

             Be prepared to take as long as it takes to reach a settlement.  A common failing of the lawyers and parties alike is to declare an impasse when settlement negotiations do not proceed quickly or when there is still a great distance between the parties after a few offers and demands.  Fortunately, the mediator has the sole authority to declare an impasse.  The mediation process takes time to work.  It is not uncommon to spend all day hundreds of thousands of dollars apart, only to settle in a few giant leaps during the last thirty to forty minutes.  This is not wasted time by any means.  Rather it is time necessary for the parties (and counsel) to recognize and accept the need to compromise.

             Do not short change your client by not giving mediation the time it needs to work.

 How do I choose a mediator?

             There are a lot of good mediators out there.  I would recommend trying several and then picking the one(s) with whom you feel the most comfortable based upon you personality, the mediator’s style and your particular case or client.

             You should be aware that there are two types of philosophies of mediators: the message takers and the negotiators (with some mediators falling somewhere in between).  The message takers do just that, relay messages between the parties and let the parties assess the message’s importance.  The negotiators play “devil’s advocate” with both sides, relying upon the information you provide them and their past litigation experience to explore the risks of the case to encourage both sides to compromise.

             When I represent a party I choose the negotiator type mediator as I want them to use their experience to convince the other side the benefits of settlement.  I do not mind them doing the same with me, particularly as they may point out a fact which I have overlooked or which I may wish to reconsider.  It never hurts to allow someone to scrutinize your case, particularly in a confidential setting.  

             When I am the mediator, I am the negotiator type, bringing over 20 years of litigation experience to bear on the particular case that I am mediating.

 What should I tell the mediator?

             Many mediators request, and most courts require, a confidential summary be sent to the mediator prior to the mediation.  This summary is an invaluable tool for the mediator as it allows him or her to review the case and mentally prepare for it, allowing him or her to concentrate on your opening issues rather than wasting time trying to figure out who the parties are and what type of case is being mediated.

           In a pre-mediation letter I look for the following: 

·              name of the parties in the litigation,

·              who will be attending the mediation (and what role they have if not otherwise obvious),

 ·              a brief summary of the underlying facts,

·              the key issues,

·              the strengths and weaknesses of the case (I call these the risk factors), and

·              the settlement negotiations to date.

            If there are any particular issues or dynamics with your case, (such as client control problems, mental or emotional issues, bad blood, etc.), it is a good idea to mention them to the mediator in hopes that he or she can assist you in dealing with that problem.

 Who needs to attend the mediation?

             This is governed by the mediation order and the rules of mediation.  Basically, absent an order or agreement to the contrary, the parties (or representative with full authority) and their counsel must be physically present along with an insurance carrier representative with “full authority” to settle.

             Attendance by phone needs to be agreed upon by the parties.

 How should I conduct the opening?

             There are many different techniques for conducting an opening.  Some treat it the same as an opening statement in court.  Others treat it very informally, even to the extent of “winging it.”  I would not recommend either of these approaches.  How you should conduct a particular mediation will vary depending on your particular case and the parties and counsel involved.  In order to decide upon the best approach, you should consider the following points. 

·                    Your goal at mediation is to settle (with the best terms possible for your client). 

·                    In order to settle, the other side has to agree to the settlement.

·                    No matter how good you are, you will never convince the other side that they are wrong and you are right any more than they will convince you that you are wrong and they are right. 

·                    At mediation you have to convince the other side that the risks of trial outweigh its benefits and that they have greater benefits by settling at mediation (even at or near your terms). 

·                    The other side will be watching you closely, often for the first time, trying to evaluate your competency in a trial setting.  Therefore, you need to be professional, with an absolute command of the facts and law. 

·                    Although you need to present the strengths of your case and the weaknesses of your opponents, the more successful lawyers do it in a fashion that demonstrates their points without antagonizing the other side.  If the other side gets too mad, they may decide to try the case just “to show you,” even if you are right.  Here is an example: 

            “Although we would like to settle today, we feel like we have a very strong case and believe that you will have to move significantly on your offer.  After all, the jury will hear that you were driving with a blood alcohol level 5 times the legal limit when you drove the wrong way down the road before running into my client’s house.  And they will hear evidence that this was not the first time.  Consequently, we feel that the jury will award punitive damages.” 

OR 

                     “You need to settle this case because you were blind drunk when you drove into my client’s house.  In fact, you are an alcoholic, have no business driving at all and the only way to keep you off the roads is by having you pay me punitive damages.” 

            Although the second approach would be closer to what I would argue to the jury, it is not very likely to work at mediation.  It also inserts a completely unnecessary obstacle to settlement by calling the opposing party an alcoholic.  Since most alcoholics are in denial, he now has to admit it, at least tacitly, in order to agree to the settlement. 

How should I conduct the private sessions? 

            Although the private sessions are informal and confidential, they are extremely important as it is here that the real work is accomplished. 

            I would stress three points. 

            First, keep your client involved in the discussions or at least make sure they understand the issues.  This will help when they are asked to agree to a compromise settlement. 

            Second, don’t blind side the mediator by cutting off further negotiations without some forewarning.  Oftentimes the mediator is using preliminary offers or demands to prepare the opposing party for the final one.  If you do not warn the mediator that you are reaching your authority level ahead of time, then this preparation is lost and most likely will result in an unnecessary impasse. 

            Third, if the case allows it, do not be afraid to “think outside the box” if there is some novel way to try and settle your case. 

What should my goal be for the mediation? 

            The first goal is to settle at the most advantageous position for your client.  Remember, a common definition of a successful mediation is one where both sides walk away unhappy.  This is really the definition of a good compromise.  (A better, but less common result is where both sides walk away happy.) 

            The second goal is if you can not settle, at least get as close to settlement as you can to set the stage for a settlement down the road.  I have had several mediations where we could not settle during the mediation for many different reasons (sometimes because the adjuster was blind sided with additional information and could not get his supervisor on the phone), but were able to settle during the following weeks as parties reevaluated their positions. 

What rules govern mediation? 

            Mediation order of court. 

            This is first and foremost.  Do not violate the court’s order. Insurance Co. of North America v. Gaines, 765 So.2d 139 (Fla. 1DCA 2000) (held that court order superceded rules of civil procedure). 

            Rules 1.700, et seq., Florida Rules of Civil Procedure 

            Chapter 44, Florida Statutes 

            Rules 10.1000, et seq., Florida Rules for Certified and Court-Appointed Mediators (found in Florida Rules of Court – State) 

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